In what is the first legislative step to the putative end of the resource management system as we know it, the Government today released an exposure draft containing key elements of the Natural and Built Environments Bill (NBA). This is a partial draft containing the purpose of the NBA (the "Part 2" equivalent), national direction (what will be known as the "National Planning Framework"), and Natural and Built Environments Plans. There will be the opportunity to submit on the exposure draft from July. The closing date for public submissions is 4 August 2021.
The draft "draws heavily" on the reforms proposed by the independent Resource Management Review Panel chaired by retired Court of Appeal Judge, Hon Tony Randerson, QC, in 2020 – retaining the same structure of three pieces of legislation (the NBA, Strategic Planning Act (SPA) and Climate Change Adaptation Act (CAA)), and the same key elements in the NBA. Areas of key interest are the Government's thinking on environmental bottom lines, positive outcomes and how competing interests will be reconciled. We comment on these further below.
The process from here includes:
For the remainder of 2021:
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Select Committee inquiry into the exposure draft (expected to take about 3 months).
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Select Committee will call for public submissions at the beginning of July.
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Select Committee report and public feedback will be considered by the Government and inform further policy development on the reform.
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Other components of the legislation not included in the exposure draft will be considered by the Ministerial Oversight Group.
Into 2022:
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Full NBA and SPA bills are proposed to be released in early 2022.
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These will follow the standard legislative process (three readings in the house and full select committee inquiry).
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The core policy to be included in the CAA will be consulted on in early 2022 alongside consultation on the National Adaptation Plan under the Climate Change Response Act.
Both the NBA and SPA are intended to be passed in this Parliamentary Term (i.e., before the second half of 2023).
Key elements of the NBA
As signalled in the Panel's report and the Government's cabinet paper released in February, the NBA focusses on strengthening environmental protections, via mandatory bottom lines, and on promoting positive outcomes, rather than the RMA's focus on the management of adverse effects.
As expected, the NBA adopts the Panel's recommendation of one plan per region (likely to be 14 plans) with the NBA plans to be prepared by a planning committee comprising representatives from the Department of Conservation, mana whenua and local government.
Purpose of the NBA
At the time it was implemented, the RMA's sustainable management purpose was considered ground-breaking. The purpose in the NBA has moved on from 1991's sustainable management focus, balancing use and protection of the environment, towards an environment-first focus, while also considering well-being.
The purpose of the NBA is to enable Te Oranga o te Taio to be upheld and for people and communities to use the environment in a way that supports the well-being of present generations without compromising the well-being of future generations. This differs from the Panel's proposal which incorporated recognition of the concept of Te Mana o te Taio into its purpose of the Act. Te Oranga o te Taio, as defined, incorporates the health of the natural environment, relationship between iwi and hapu and te taiao, interconnectedness of the natural environment and the essential relationship between the health of the natural environment and capacity to sustain life.
Other sections in Part 2 give very clear direction that any use / development will need to comply with environmental limits, promote outcomes for the benefit of the environment and avoid, remedy or mitigate any adverse effects on the environment. Mitigate is defined to include offset and compensation if enabled by the planning framework or as a consent condition.
Environmental Limits, Positive Outcomes and the National Planning Framework
Six mandatory bottom lines, "environmental limits" are required to be set by the Minister for the Environment. The NBA requires the Minister to take a precautionary approach in setting environmental limits. The mandatory limits cover: air; biodiversity, habitats and ecosystems; coastal waters; estuaries; freshwater; and soil. Limits will either be a maximum/minimum acceptable state of an aspect of the environment (e.g. the maximum concentration of nitrogen in a lake); or a maximum amount of harm or stress that can be caused to that state (e.g. the maximum amount of water taken from a water body).
The limits may be prescribed qualitatively or quantitatively, and may be set at different levels for different circumstances and locations. Environmental limits may be prescribed in the National Planning Framework or in an NBA Plan.
The list of positive outcomes specified in Part 2 has been refined from 21 in the Panel's report to 16 in the proposed NBA. These still cover similar environmental quality outcomes and have refined the Panel's "built environment" outcomes. Importantly "resilient urban form with good transport links" and the "ongoing provision of infrastructure services to support the well-being of people and communities" are now expressly identified as a positive outcome to be promoted. Previous iterations in the Panel's report and the cabinet paper released by the Government in February had focussed on the integration of infrastructure with land use rather than recognising the importance of infrastructure in and of itself, and the essential service it provides to communities.
Of the 16 positive outcomes, there are nine for which direction must be set out in the National Planning Framework, including housing supply and infrastructure services. The implementation of the National Planning Framework is to occur through being given effect in NBA plans, regional spatial strategies or by having direct legal effect (similar to how National Environmental Standards operate now).
Conflicting outcomes
One of the significant issues with national direction under the RMA has been the lack of integration and potentially conflicting nature of the various national policy statements. A key question for the NBA is whether it will be able to adequately deal with the inevitable conflict between its different specified outcomes and limits. The NBA proposes to address this issue by requiring the National Planning Framework to include provisions to help resolve conflicts between or among the environmental outcomes.
The Government also envisages that the new NBA plans will help to reduce conflicts by specifying more permitted and prohibited activities and reducing the number of discretionary activities. There is also strong direction to planning committees when making decisions on an NBA plan that they must give effect to the national planning framework and are not able to independently consider whether or not the national planning framework in place furthers the purpose of the NBA. In the Parliamentary Paper accompanying the exposure draft, the Government makes it clear that it is seeking to codify aspects of the Supreme Court’s King Salmon decision, in relation to the hierarchy between planning documents.
The Parliamentary Paper goes on to note that it will not be feasible for the NPF and NBA plans to foresee and conclusively resolve all tensions in advance, but the full Bill will provide mechanisms for decision-makers to resolve conflicts at the consenting stage.
Comment
The exposure draft continues along the path of reform set by the Panel providing further detail but no dramatic changes. Most commentators have generally agreed with the objectives of the reform process, providing a functioning system that better enables New Zealand to meet the triple pressures of environmental degradation, the need to accommodate growth and addressing the implications of climate change. The concern has always been in the implementation of the legislation.
The Government's accompanying comments indicate that they are aware of some of the pitfalls – conflicting outcomes that hobble necessary development, lack of capacity and capability to implement the new system and transitional issues. The Parliamentary Paper promises that the Government will work with local government and Te Tiriti partners ahead of and during the transition to establish enduring relationships and ensure support is in place with substantial funding to implement the reform. It recognises that the National Planning Framework needs to be in place as early as possible and that providing as much certainty about how the legislation will work in practice is critical to the success of the reform.
While the Government has recognised the need for a clear and integrated set of direction and conflict mechanisms we are still unsure as to how this will work in practice. There is still a lot of uncertainty that will need to be worked through in the final version of the NBA and clearly addressed in the implementation of the new system. On first review it is unclear how several of the concepts will work in practice, in particular the multi component element of Te Oranga o te Taiao and the use of drafting terms such as "ecological integrity".
The Select Committee process provides an opportunity for the drafting to be refined and clarified to achieve its objectives. Please contact one of our experts if you would like to discuss or require assistance in making a submission on the Bill.